The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1887-11-11

been entertained In Michigan OF Nebraska of
the constitutionality Of the statutes OF those
States respectively, bat they have always been
treated by their Supreme Courts as valid 10th
under the Constitution OF the United States
and under that Of the State. Stephens vs.. the
people, IS Michigan. 73e to 745; Ulrich VS.. the
people, 30 Michigan, 245; Murphy VS.. The State,
Is Nebraska, 3S3
Indeed. the rule OF the statute OF Illinois, -
II was construed by the trial court, is not ma
terially different from that which has been
adopted by the courts in many Of the States
without legislative action.
Without pursuing this subject further II IL
sufficient to say that We agree entirely with the
Supreme Court of nliAn;s in the opinion that
the statute on its fac, as construed by the
trial court is not repugnant to section Of
article of the Constitution OF that State which
guarantees TO the accused party In every GRIM
inal prosecution speedy t-ial by an impartial
jury OF the county or district in which the Of
Tense is alleged to have been committed. As
this is Substantially the pro, 'siors OF the Con-
stitution Of the United States. on which the
petitioners now rely, it follows that even il
their position as 70 the operation and effect Of
that Constitution is correct, the statute is not
open TO the objection which is made against II.
We proceed then, to a consideration of the
grounds of challenge to the jurors Denker and
Sanford to see if IN the actual administration Of
the rule OF the statute by the court OF the rights
OF the defendants under the Constitution of tie
United States were in any way impaired.
The court then gives extracts from the exam
!nator of Denlker by the defense, and says that
he was challenged for cause" by the defend
ants, but before any decision was made thereon
he was questioned by the court, and the courts
examination is appended.
The court the opinion continues, there
upon overruled the challenge. but before the
Juror was accepted and sworn he was further
examined by counsel for the defendants" This
examination is also reprinted from the record.
The court then says that the examination of
the Juror by counsel for the defendants closed
and he was examined by the State and cita-
lions are given from the question and answers
in this examinatio, after which the opinion
continues: At the close of the examination
neither party challenged the juror peremptorily
and he Vas accepted and sworn. When this
occurred it is not denied the defendants were
still entitled to I43 percmptory challenges, or
about that number. When the juror (Sanford)
was called he was first examined by counsel for
the defendants. At the close of this examina-
ton on the part of the defendants the juror was
attorney for the State, after it was ascertained
that all the peremptory challenges of the de-
PENDANTS had been exhausted, took up the ex-
animation OF the juror"
The result of the examination is given as Is
the ruling OF the court denying the challenge to
overrule for cause, and stating that as the per
emptory challenges of the defense were ex-
hausted. Sanford was a juror to try the case,
so far as the defendants were concerned. This
was accepted by both parties, the court says,
rs true statement of the then condition of
the case, and after some further examination of
the juror which ELECTED nothing of importance
in connection with the present inquiry,
no peremptory challenge having been
interposed by the State. Sanford was
sworn as juror and the panel was thus
complete. This. so far as we have
been advised, presents all there is in the record
which this court can consider touching the
challenge Of these two jurors by the defendants
for cause. In Reynolds VS.. the United States.
as United States. 145 to 156 it was decided by
this court that in order to justify the reversal
of the Judgment of the Supreme Court OF the
Territory of Utah for refusing to allow a chat
ienge TO a jury in criminal cases on the ground
that he had formed and expressed an opinion as
to the issues 10 be tried it must be made
clearly to appear that upon the evidence the
court ought TO have found the juror had
formed such an opinion that could not
IN law be deemed impartial The case
must be one in which it is manifest the
law left nothing to the conscience or discretion
of the court If such is the degree OF strictness
from one court to another in the same general
jurisdiction We ought to be careful that il is not
at all relaxed in a case like this when the
ground relied on Tor the reversal by this court
OF a judgment Of the highest court Of the State
is that the error complained of is 50 great as IL
amount in law to a denial by the State of a
trial by an impartial jury to one who is &c.
cused OF crime. We are unhestasingy of the
opinion that no such case is disclosed by this
record.
We come now to consider the objection that
the defendant Spies was compelled by the court
to be a witness against himself. He voluntarily
offered himself as witness in his Own behalf,
and by SO doing he became bound to submit
himself to proper DISCRIMINATION. The
complaint is that he was required on crosS-ex.
animation to state whether he had received a
certain letter which was shown purporting to
have been written by Johann Most and adj
dressed to him. and. upon his saying that he
had, the court allowed the letter to be read
in evidence against him. This, it is
claimed, was not proper erossexamina-
ton. 1t is not contended that the subject to
which the crossexamnation related was not
pertinent TO the issue 10 be tried, and whether
4 cross-examination must be confined TO mat
tiers pertinent to the testimony in chief or may
be extended to the matter in issue is certainly
a question of State law in the courts of the
State and not of Federal law.
Something has been said in argument about
an alleged unreasonable search and seizure OF
the papers and property Of the defendants and
their use in evidence on the trial OF the case.
Special reference is made in this connection to
The letter of Most about which Spies was
but we have not been referred
10 any part Of the record in which it appears
that objection was made to the use of
he evidence on that account, and
lpon this point the Supreme Court
Of the State in that part of its opinion which
mas been printed with this motion remarks as
ollows: The objection that the letter was
obtained from the defendant by an unlawful
seizure is made for the first time in this court.
Il was not made on the trial in the court below. !
Such an objection as this. which is not sug. |
rested by the nature OF the offered evidence, but
depends upon the proof of an outside fact,
should have been made on the trial. The de- !
ense should have proved that the Most letter I.
vas one of the letters illegally seized by the :
,olicc and should then have moved to exclude :
n oppose its admission on the ground that il .
vas obtained by such illegal seizure. This was
lot done, therefore we can not consider the con- ,
titutional question supposed to be involved" !
Even though the court was wrong in saying !
nat it did not appear that the Most letter was ,
me of the papers illegally seized, it still re-
mains uncOntradcted that no objection was
made in the trial court to its admission on that !
ccount. To give US jurisdiction under section ,
10 OF the revised statutes because OF the /
enial by State court OF any title, right. priv.
ege or immunity Claimed under the Cons;itu.
ion or any treaty CT statute Of the United
states. it must appear that such title, right,
riviiege or immunity was specially set
p or claimed at the proper time
nd in the proper way. To be renewable the
ecision must be against the right SO set up OF
laimed. AS the Supreme Court Of the State
fas reviewing the decision OF the trial court. to
nake the question renewable here it must ap-
ear that the cl i'm was made in that court be-
ause the Supreme Court was only authorized &c
eview the judgment of that court for errors
there. and We can do no more